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International Law Association\u27s Guidelines on Intellectual Property and Private International Law ( Kyoto Guidelines ): Applicable Law
Get PDFThe chapter “Applicable Law” of the International Law Association’s Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”) provides principles on the choice of law in international intellectual property matters. The Guidelines confirm the traditional principle of the lex loci protectionis for the existence, transferability, scope and infringement of intellectual property rights. The law applicable to the initial ownership of registered rights is governed by the lex loci protectionis whereas the law of the closest connection is applied to determine the ownership of copyright. For contracts, freedom of choice is acknowledged. With regard to ubiquitous or multi-state infringement and collective rights management in the field of copyright, the Guidelines suggest innovative solutions. Finally, the chapter contains a Guideline on the law applicable to the arbitrability of disputes
Everybody Knows I\u27m Not Lazy : Medicaid Work Requirements and the Expressive Content of Law
Get PDFIn a first for the Medicaid program, the Department of Health and Human Services under President Trump allowed states to establish work requirements for program participants who are considered able-bodied adults. These mandates were halted by litigation, and President Biden\u27s administration is now in the process of withdrawing the waivers. But early experiences with Medicaid work requirements suggested that they can produce widespread losses of benefits. In addition to affecting access, work requirements and other conditions on public benefits can serve an expressive purpose: they provide a source of information about a state\u27s values, goals, and beliefs about beneficiaries. Beneficiaries are one audience for this expressive message, but we know little about what they hear when their state makes benefits more difficult to access.
This Article presents an original empirical study of more than 9,000 Medicaid beneficiaries in the Commonwealth of Kentucky, the first state approved for a work requirement program. Using a mix of survey data and qualitative interviews, this Article demonstrates that Medicaid beneficiaries understand work requirements as providing information about the state\u27s values and priorities. But depending on their priors, beneficiaries interpreted these messages very differently. Many found work requirements unfair and expressive of disregard toward themselves and other beneficiaries; others believed, however, that the state had validated their identities as taxpayers.
This Article presents these findings and considers implications for expressive theories of law, shifting the paradigm to emphasize that the expressive impacts of law will depend on who is listening
The Corporate Governance Machine
Get PDFThe conventional view of corporate governance is that it is a neutral set of processes and practices that govern how a company is managed. We demonstrate that this view is profoundly mistaken: For public companies in the United States, corporate governance has become a “system” composed of an array of institutional players, with a powerful shareholderist orientation. Our original account of this “corporate governance machine” generates insights about the past, present, and future of corporate governance. As for the past, we show how the concept of corporate governance developed alongside the shareholder primacy movement. This relationship is reflected in the common refrain of “good governance” that pervades contemporary discourse and the maturation of corporate governance as an industry oriented toward serving shareholders and their interests. As for the present, our analysis explains why the corporate social responsibility movement transformed into shareholder value-oriented environmental, social, and governance (ESG) standards, stakeholder capitalism became relegated to a new separate form of entity known as the benefit corporation, and public company boards of directors became homogenized across industries. As for the future, our analysis suggests that absent a major paradigm shift that would force multiple institutional gatekeepers to switch their orientation, advocacy pushing corporations to consider the interests of employees, communities, and the environment will likely fail unless such effort is framed as advancing shareholder interests
Corporate Crime and Punishment: An Empirical Study
Get PDFFor many years, law and economics scholars, as well as politicians and regulators, have debated whether corporate punishment chills beneficial corporate activity or, in the alternative, lets corporate criminals off too easily. A crucial and yet understudied aspect of this debate is empirical evidence. Unlike most other types of crime, the government does not measure corporate crime rates; therefore, the government and researchers alike cannot easily determine whether disputed policies are effectively deterring future incidents of corporate misconduct. In this Article, we take important first steps in addressing these questions. Specifically, we use three novel sources as proxies for corporate crime: the Financial Crimes Enforcement Network (FinCEN) Suspicious Activity Reports (SARs), consumer complaints made to the Consumer Financial Protection Bureau (CFPB), and whistleblower complaints made to the Securities and Exchange Commission (SEC). Each source reveals an increase in complaints or reports indicative of corporate misconduct over the past decade. We also examine levels of public company recidivism and find that they are likewise on the rise. And we document a potential explanation: recidivist companies are much larger than nonrecidivist companies, but they receive smaller fines than non-recidivist companies (measured as a percentage of market capitalization and revenue). We conclude by offering recommendations for enforcement agencies and policymakers. In particular, our results suggest that enforcers are unlikely to achieve optimal deterrence using fines alone. Enforcement agencies should therefore consider other ways of securing deterrence, such as by seeking penalties against guilty individuals and the top executives who facilitate their crimes
The Equal Rights Amendment and the Equality Act: Talking Points
Get PDFThe Equal Rights Amendment, first proposed nearly 100 years ago, is still needed today. The ERA is a constitutional amendment that would protect against discrimination on the basis of sex—including on the basis of sexual orientation, gender identity, and gender expression. The ERA would also usher in advancements in sex equality in all three branches of government, empower advocates, and encourage recognition of related forms of discrimination such as pregnancy discrimination. By including the ERA in our Constitution, the United States would catch up with the more than 100 other countries with constitutional protections against sex-based discrimination
Religion\u27s Ascension to a Top-Tier Right During COVID: New Report Unpacks the Supreme Court’s Recent Religious Liberty Cases
Get PDFA new report released by The Law, Rights, and Religion Project (LRRP) at Columbia Law School — We The People (of Faith): The Supremacy of Religious Rights in the Shadow of a Pandemic — shows how the Supreme Court’s COVID-era opinions have created a hierarchy of constitutional rights, with religious rights at the top. This legal regime will have a resounding impact on U.S. law, affecting policymakers’ ability to protect public health, prevent discrimination, and secure labor rights long after the current COVID-19 crisis has abated
Lakefront: Public Trust and Private Rights in Chicago
No full textHow did Chicago, a city known for commerce, come to have such a splendid public waterfront – its most treasured asset? Lakefront reveals a story of social, political, and legal conflict in which private and public rights have clashed repeatedly over time, only to produce, as a kind of miracle, a generally happy ending.
Joseph D. Kearney and Thomas W. Merrill study the lakefront\u27s evolution from the middle of the nineteenth century to the twenty-first. Their findings have significance for understanding not only Chicago\u27s history but also the law\u27s part in determining the future of significant urban resources such as waterfronts.
The Chicago lakefront is where the American public trust doctrine, holding certain public resources off limits to private development, was born. This book describes the circumstances that gave rise to the doctrine and its fluctuating importance over time, and reveals how it was resurrected in the later twentieth century to become the primary principle for mediating clashes between public and private lakefront rights. Lakefront compares the effectiveness of the public trust idea to other property doctrines, and assesses the role of the law as compared to more institutional developments, such as the emergence of sanitary commissions and park districts, in securing the protection of the lakefront for public uses.
By charting its history, Kearney and Merrill demonstrate that the lakefront\u27s current status is in part a product of individuals and events unique to Chicago. But technological changes, and a transformation in social values in favor of recreational and preservationist uses, also have been critical. Throughout, the law, while also in a state of continual change, has played at least a supporting role.https://scholarship.law.columbia.edu/books/1309/thumbnail.jp
Presidential Progress on Climate Change: Will the Courts Interfere With What Needs to Be Done to Save Our Planet?
Get PDFThe Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks
Comments to the Draft Working Group III Workplan
Get PDFThe United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to it. Having identified various concerns about ISDS and determined that such concerns merit multilateral reform, UNCITRAL is now engaged in developing procedural reform solutions. To contribute to UNCITRAL’s work, CCSI, together with the International Institute for Environment and Development (IIED) and the International Institute for Sustainable Development (IISD), submitted five documents outlining potential reform options and considerations:
Comments to the Draft Working Group III Workplan. The draft workplan is available on the Working Group III website and is intended to set forth and allocate time and resources to the WGIII activities over the coming years. Our comments relate to making the plan of work more transparent and participatory, in particular for developing countries, non-governmental Working Group III observers (including our organizations) and also how the workplan should incorporate the “cross-cutting issues.